Wednesday, January 19, 2011

Is A Domestic Violence Registry A Good Idea?

A state representative in Texas has proposed a bill that would create a domestic violence computer database. It would work much like the sex offender's database, but would be used for chronic domestic violence offenders.

The bill being proposed creates a database that the state controls and publishes online. A person would be entered into the database upon their third conviction for a domestic violence crime. There are obvious reasons for those who support this bill to want such a thing to exist. The question is whether or not such a database is such a good idea. Especially given that many of the crimes that would be considered eligible for the database are misdemeanors rather than serious felonies.

The sex offender's database that exists in most states has occasionally been some kind of blessing, but it's had a lot of problems as well. Often, people with similar names are mistaken for those who are in the database and some states, such as California, are labeling crimes that are not sex crimes as such in order to enter those names in the database as well. The system has seen a fair amount of abuse and has not been proven to lower sex crime rates by any measure.

Opponents of the domestic violence d-base in Texas have pointed out that the state has a budget shortfall of $27 billion and this bill would just create a new, costly bureaucracy. Further, putting someone into this database creates a more-or-less permanent record so that even if the person were to get their name removed (say on appeal or after expungement), it's likely their name would continue to be on copies of the database around the Internet.

That second issue is a big one and worth considering closely. As with the sex crimes database, it can be assumed that many people will copy or republish a domestic crimes database around the Web. So removing yourself from the state-run database would not necessarily mean being removed from the list itself, which could be in many locations. So the stigma of being an offender would follow the person potentially forever.

So this is a question of punishment versus the public good. Most crimes are already a "permanent" stigma on a person's record. Many jobs (even the most menial) and even credit checks now include criminal background checks. To date, the only way to clear up one's criminal record and improve job prospects has been through the expungement process. Most sociologists agree that this is a large contributor to the problem of recidivism in our country.

Is the domestic violence database a good idea then? Although the idea sounds good and appears to be something that will "combat domestic violence," that is an illusion. Just as the sexual predator's database has done little to curb sex crime in the U.S., a database for domestic violence offenders is even less likely to have a positive effect on domestic violence rates.

Saturday, January 15, 2011

Gary Busey Pulled Over for DUI, Someone Else Gets Arrested

A few days ago, Gary Busey, the actor, was pulled over on suspicion of driving under the influence (DUI). The police were alerted when motorists on the late night highway saw a black Mercedes weaving on the road. When the police stopped the car, it turned out to be Busey driving. The people who'd alerted the cops stopped nearby in case they were to be asked for a statement.

About half a dozen officers, witnesses say, appeared on the scene and conducted a field sobriety test on Busey. Despite his weaving driving and apparent disarray, he passed the test and was let go. During Busey's roadside test, the middle-aged couple who'd alerted police took photos with their cell phones. A policeman approached them and told them to stop the picture taking and be on their way. As they left, one more photo was snapped.

That was enough for police to pull over the couple and arrest them for <em>"Obstructing a Peace Officer in His Duties."</em> This offense landed them five hours in jail. For taking pictures!

So now we must ask an important question: why is it that when someone takes a photo of a movie star, they are somehow "obstructing" whereas if the person being stopped for DUI had been just a regular guy, it's likely nobody would have cared about the photos?

Do you see anything wrong with what the couple was doing? By all accounts, it appears they didn't even leave their car and they weren't told to leave until well into the incident. So it's hard to justify an obstruction charge here. What do you think?

Thursday, January 13, 2011

The Driving on a Suspended License Scam

The government considers driving to be a privilege which they can revoke at any time. For many offenses, both criminal and civil, a person's drivers license will be suspended as a part of the punishment – even before conviction. For instance, a person accused of drunk driving, who has a warrant out for their arrest, or who owes back taxes can have their driving privileges suspended until the matter if cleared.

In essence, this forces a person to go without the use of their vehicle until they've satisfied the state that they are innocent. The punishment of not being able to drive is imposed even without proof of guilt. This throws "innocent until proven guilty" on its ear.

A person who is caught driving on a suspended/revoked license is, in most states, guilty of a misdemeanor crime. That is punishable by fine, jail, and often the vehicle will be confiscated until the matter is resolved – resulting in even more fines to get the vehicle out of lockup.

Fines and possible jail time vary by state, but most are in the $500-$1,000 range and/or up to six months in jail. Often, if convicted, the person's license will be suspended for an even longer period as well.

All for not paying a parking ticket, being accused of (but not convicted of) a DUI, or any of a number of crimes and infractions that are often not required to be proven for the license to be revoked.

The government says that, even though you are required to purchase your own vehicle, pay taxes to maintain roads, and pay further taxes to register your vehicle, your ability to drive that vehicle on the roads you've paid for is subject to their discretion and can be suspended or denied at any time.

Is that justice?


Friday, September 4, 2009

Battery

Battery is commonly seen as the unwanted or unpermitted touching of another person by an individual, with the clear intention of doing harm. In cases of battery, there is usually an element of assault involved just prior to the act. This generally consists of the perpetrator showing, vocalizing or preparing for the act of battery upon the victim by way of threat of physical violence. In most cases, battery is prosecuted as a crime only in instances involving serious harm to the victim. Most victims of battery sue for specific damages in civil court.

The elements of battery that must be present in order to pursue adjudication against a defendant include: an act by a defendant; an intent to cause harmful or offensive contact on the part of the defendant; and harmful or offensive contact to the plaintiff. The only question in determining the act of battery is the action taken. If someone hit you, but no bruise or visible result of the crime existed, there would still be a battery. A secondary type of contact constituting battery is when no actual physical harm takes place. This involves the interfering with or removal of something the plaintiff was possessing, wearing, or in close contact with.

As in assault, intent is also key in a battery case. Although contact must be intended, no intent to harm an individual need be established for it to be considered battery. There is specific and general intent when discerning the defendant's mindset with regards to battery. Specific intent means the defendant's contact was specifically intended. General intent means the defendant was substantially certain his act would cause the contact intended. Intent to contact is not exempt if it was intended as a joke, in tort law. Consent to contact, however, is a defense, just as a person in a crowded area assumes a certain amount of personal risk and implied consent to "incidental contact".

Indirect offensive or harmful conduct results when a defendant sets in motion a chain of events that harms an individual or individuals, or fails to reasonably warn an individual of impending harm that he or she may have knowledge of.

Aggravated battery, like aggravated assault, occurs when great intent to do bodily harm, or murder - such as with a deadly weapon - is present. It is punishable as a felony in all states, and generally garners a heavy sentence. In civil action it is punishable by damages, either compensatory, nominal or punitive, as in assault cases.

Friday, August 14, 2009

Breaking and Entering

Breaking and entering are two of the elements necessary to constitute a burglary, and are generally defined in the law dictionary as "the gaining of unauthorized, illegal access to another's premises, as by forcing a lock." Another entry has it as: "trespassing for an unlawful purpose; illegal entrance into premises with criminal intent". The simple act of pushing open a door to a premises which has been left ajar is enough to constitute breaking and entering, being that you have no permission to enter, and are then trespassing.

Breaking and entering, in and of itself, is a misdemeanor crime when unaccompanied by more serious offenses. Broken down individually, breaking does not require that anything be "broken" in terms of physical damage occurring. It can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself. It is generally required at common law that entry occurs as a consequence of the breaking. For instance, if a malfeasor opened a window partially by using a pry bar and then noticed an open door through which he subsequently entered the building, there is no burglary per se at common law.

Breaking and entering can have serious consequences if the perpetrator, whose intent may be innocent in some cases, e.g. just to see if a neighbor, acquaintance, pet, etc. has entered onto said property, goes unawares of property owners' rights to defend themselves and their property, or unawares of the punishment involved. In most cases "B & E" is a precursor to another, more serious crime, such as burglary, larceny, arson, kidnapping, rape, assault, battery, murder, etc., and thus is taken very seriously.

Battery

Battery is commonly seen as the unwanted or unpermitted touching of another person by an individual, with the clear intention of doing harm. In cases of battery, there is usually an element of assault involved just prior to the act. This generally consists of the perpetrator showing, vocalizing or preparing for the act of battery upon the victim by way of threat of physical violence. In most cases, battery is prosecuted as a crime only in instances involving serious harm to the victim. Most victims of battery sue for specific damages in civil court.

The elements of battery that must be present in order to pursue adjudication against a defendant include: an act by a defendant; an intent to cause harmful or offensive contact on the part of the defendant; and harmful or offensive contact to the plaintiff. The only question in determining the act of battery is the action taken. If someone hit you, but no bruise or visible result of the crime existed, there would still be a battery. A secondary type of contact constituting battery is when no actual physical harm takes place. This involves the interfering with or removal of something the plaintiff was possessing, wearing, or in close contact with.

As in assault, intent is also key in a battery case. Although contact must be intended, no intent to harm an individual need be established for it to be considered battery. There is specific and general intent when discerning the defendant's mindset with regards to battery. Specific intent means the defendant's contact was specifically intended. General intent means the defendant was substantially certain his act would cause the contact intended. Intent to contact is not exempt if it was intended as a joke, in tort law. Consent to contact, however, is a defense, just as a person in a crowded area assumes a certain amount of personal risk and implied consent to "incidental contact".

Indirect offensive or harmful conduct results when a defendant sets in motion a chain of events that harms an individual or individuals, or fails to reasonably warn an individual of impending harm that he or she may have knowledge of.

Aggravated battery, like aggravated assault, occurs when great intent to do bodily harm, or murder - such as with a deadly weapon - is present. It is punishable as a felony in all states, and generally garners a heavy sentence. In civil action it is punishable by damages, either compensatory, nominal or punitive, as in assault cases.

Assault

Assault, in traditional legal terms, is defined as an attempt or threat, going beyond mere words, to use violence, with the intent and the apparent ability to do harm to another. The common law encyclopedia calls it "an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact". The essential elements which make up the crime of assault are the use of an overt gesture of violence, going beyond mere words, towards the crime of battery. This is the reason the two are often coupled together in criminology. Battery is the resultant physical contact that stems from the initial overt threat to have a violent attack carried out.

Intent is an essential element of assault. This can be specific intent, e.g. if the assailant intends to cause the apprehension of harmful or offensive contact in the victim, or general intent, wherein he or she intends to do the act that causes such apprehension. Additionally, the element of intent is fulfilled if it is substantially certain, to a reasonable person, that the act will cause the result. The victim must generally be aware of the danger of physical violence for it to be considered assault. A person who starts beating a sleeping individual bypasses the element of assault and goes right to battery.

There can be no crime of assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury.

Aggravated assault is committed when a person intends to go beyond the violence enough to scare an individual, or merely rough them up. Aggravated assault occurs during rape, robbery, or when there is a clear intent to kill.

A person convicted of civil assault is liable for damages. These consist of either compensatory - as for hospital bill reimbursement, loss of wages, etc., nominal - usually a small sum, in cases where a minor amount of damage has been done; and punitive, which are designed as rightful punishment befitting the crime.